Karnataka High Court
Bharigouda S/O Balagouda Patil vs Deputy Commissioner, Belgaum on 15 March, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
M.F.A.No.101278/2015 c/w
M.F.A.Nos.101359/2015 & 3750/2015 (EP) &
W.P.No.101369/2015 [GM - CC]
IN M.F.A.No.101278/2015:
BETWEEN :
SRI SUDHIR NAGESH GADDE
AGE: 35 YEARS, OCC: BUSINESS
R/O WARD No56,
S.NO.71/1+2+3A, CHAVAT GALLI,
SIDDESHWAR ROAD, KANABARGI,
BELAGAVI TALUK & DISTRICT. ...APPELLANT
(BY SRI D.RAVIKUMAR GOKAKAKAR, ADV.)
AND :
1. THE RETURNING OFFICER,
WARD No.55 TO 58 FOR 2013 ELECTION
CORPORATION OF CITY OF BELAGAVI
BELAGAVI TALUK & DISTRICT.
2. THE COMMISSIONER
STATE ELECTION COMMISSION,
NEAR GPO OFFICE OF
THE ELECTION COMMISSIONER
BENGALURU
3. THE DEPUTY COMMISSIONER
BELGAUM, OFFICE OF THE
DEPUTY COMMISSIONER,
BELAGAVI TALUK & DISTRICT.
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4. TAHSILDAR,
OFFICE OF TAHSILDAR
BELAGAVI TALUK & DISTRICT.
5. THE HEAD MASTER
GOVERNMENT PRIMARY KANNADA SCHOOL
KANABARGI, BELAGAVI TALUK & DISTRICT.
6. SRI BHAIRGOUDA BALGOUDA PATIL,
AGE: 34 YEARS, OCC: BUSINESS,
R/O No.548, PATIL GALLI, KANABARGI,
BELAGAVI TALUK & DISTRICT.
7. SRI SAGAR ARUN KANBARKAR
AGE: 26 YEARS, OCC: BUSINESS
R/O H.NO.113,
GOKAK ROAD, KANABARGI,
BELAGAVI TALUK & DISTRICT.
8. SRI MOHAN SHANKAR HUGAR,
AGE: 38 YEARS, OCC: ADVOCATE,
R/O SHRI PRABHU NIWAS,
PLOT No.17, No.389/2,
NEAR 2ND BUS STOP, KANABARGI,
BELAGAVI TALUK & DISTRICT.
9. SRI SRISHAIL BASAVANNI SAMPAGAVI
AGE: 36 YEARS, OCC: BUSINESS
R/O H.NO.923/19,
KONWAL GALLI, KANABARGI
BELAGAVI TALUK & DISTRICT.
10. SRI SHANKAR BASAVANT DESHNUR
AGE: 34 YEARS, OCC: BUSINESS
R/O 923/19,
KONWAL GALLI, KANABARGI
BELAGAVI TALUK & DISTRICT.
11. THE COMMISSIONER
CORPORATION OF CITY OF BELAGAVI
S.P.OFFICE ROAD, BELAGAVI.
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12. THE HEAD MASTER,
SHRI SIDDESHWAR HIGH SCHOOL,
KANABARGI,
BELAGAVI TALUK & DISTRICT. ...RESPONDENTS
(BY SMT.HEMALEKHA K.S., ADV. FOR R-2;
SRI ANAND K. NAVALAGIMATH, HCGP FOR R-3 TO R-5;
SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI RAVIRAJ C. PATIL, ADV. FOR R-6;
SRI R.K.KULKARNI & SRI LOKESH MALAVALLI, ADVS. FOR R-10;
R-1, R-7, R-8, R-9, R-11 & R-12 ARE SERVED.)
THIS M.F.A. IS FILED UNDER ORDER 38 OF KMC ACT
1976, AGAINST THE ORDER DATED 06.04.2015 PASSED IN
E.P.No.3/2013 ON THE FILE OF THE III ADDITIONAL DISTRICT
AND SESSIONS COURT BELAGAVI, REJECTING THE PETITION
FILED UNDER SECTION 33 OF KMC ACT 1976 ALLOWING THE
I.A.No.1/2013.
IN M.F.A.No.101359/2015:
BETWEEN :
SRI SUDHIR NAGESH GADDE
AGE: 35 YEARS, OCC: BUSINESS
R/O WARD No56,
S.NO.71/1+2+3A, CHAVAT GALLI,
SIDDESHWAR ROAD, KANABARGI,
BELAGAVI TALUK & DISTRICT. ...APPELLANT
(BY SRI D.RAVIKUMAR GOKAKAKAR, ADV.)
AND :
1. THE COMMISSIONER
CORPORATION OF CITY OF BELAGAVI
S.P.OFFICE ROAD,
BELAGAVI TALUK & DISTRICT.
2. THE RETURNING OFFICER,
WARD No.55 TO 58 FOR 2013 ELECTION
CORPORATION OF CITY OF BELAGAVI
BELAGAVI TALUK & DISTRICT.
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3. SRI BHAIRGOUDA BALGOUDA PATIL,
AGE: 34 YEARS, OCC: BUSINESS,
R/O No.548, PATIL GALLI, KANABARGI,
BELAGAVI TALUK & DISTRICT.
4. SRI SAGAR ARUN KANBARKAR
AGE: 26 YEARS, OCC: BUSINESS
R/O H.NO.113,
GOKAK ROAD, KANABARGI,
BELAGAVI TALUK & DISTRICT.
5. SRI MOHAN SHANKAR HUGAR,
AGE: 38 YEARS, OCC: BUSINESS,
R/O SHRI PRABHU NIWAS,
PLOT No.17, No.389/2,
NEAR 2ND BUS STOP, KANABARGI,
BELAGAVI TALUK & DISTRICT.
6. SRI SRISHAIL BASAVANNI SAMPAGAVI
AGE: 36 YEARS, OCC: BUSINESS
R/O H.NO.581,
KUMBHAR GALLI, KANABARGI
BELAGAVI TALUK & DISTRICT.
7. SRI SHANKAR BASAVANT DESHNUR
AGE: 34 YEARS, OCC: BUSINESS
R/O 923/19,
KONWAL GALLI, KANABARGI
BELAGAVI TALUK & DISTRICT. ...RESPONDENTS
(BY SMT.HEMALEKHA K.S., ADV. FOR R-1;
SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI RAVIRAJ C. PATIL, ADV. FOR R-3;
SRI R.K.KULKARNI & SRI LOKESH MALAVALLI, ADVS. FOR R-7;
R-2, R-4, R-5 & R-6 ARE SERVED.)
THIS M.F.A. IS FILED UNDER ORDER 38 OF KMC ACT
1976, AGAINST THE ORDER DATED 06.04.2015 PASSED IN
E.P.No.1/2013 ON THE FILE OF THE III ADDITIONAL DISTRICT
AND SESSIONS COURT BELAGAVI, REJECTING THE PETITION
FILED UNDER SECTION 33 OF KMC ACT 1976 ALLOWING THE
I.A.No.1/2013.
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IN M.F.A.No.3750/2015:
BETWEEN :
BHAIRGOUDA,
S/O BALAGOUDA PATIL,
AGED ABOUT 35 YEARS,
OCC: BUSINESS, R/O No.548,
PATIL GALLI, KANABARGI,
BELAGAVI TALUK & DISTRICT. ...APPELLANT
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI RAVIRAJ C. PATIL, ADV.)
AND :
1. THE COMMISSIONER
CORPORATION OF CITY OF BELAGAVI.
2. THE RETURNING OFFICER,
CORPORATION OF CITY OF BELAGAVI,
WARD No.55 TO 58,
ELECTION TO THE CITY OF
MUNICIPAL CORPORATION, BELAGAVI.
3. SHANKAR
S/O BASAVANTA DESHNUR
AGED ABOUT 33 YEARS,
OCC: BUSINESS, R/O 923/19,
KONWAL GALLI, KANABARGI
BELAGAVI TALUK & DISTRICT.
4. SUDHIR
S/O NAGESH GADDE
AGED ABOUT 34 YEARS,
OCC: BUSINESS R/O WARD No56,
CHAVAT GALLI,
SIDDESHWAR GALLI ROAD, KANABARGI,
BELAGAVI TALUK & DISTRICT.
5. SAGAR
S/O ARUN KANABARAKAR
AGED ABOUT 26 YEARS,
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OCC: BUSINESS, R/O H.NO.113,
GOKAK ROAD, KANABARGI,
BELAGAVI TALUK & DISTRICT.
6. MOHAN
S/O SHANKAR HUGAR,
AGED ABOUT 38 YEARS, OCC: BUSINESS,
R/O SHRI PRABHU NIWAS,
PLOT No.17, No.389/2,
NEAR 2ND BUS STOP, KANABARGI,
BELAGAVI TALUK & DISTRICT.
7. SRISHAIL
S/O BASAVANNI SAMPAGAVI
AGED ABOUT 36 YEARS,
OCC: BUSINESS, R/O H.NO.581,
KUMBHAR GALLI, KANABARGI,
BELAGAVI TALUK & DISTRICT. ...RESPONDENTS
(BY SMT.HEMALEKHA K.S., ADV. FOR R-1;
SRI R.K.KULKARNI, ADV. FOR R-3;
SRI D.RAVIKUMAR GOKAKAKAR, ADV. FOR R-4;
R-2, R-5, R-6 & R-7 ARE SERVED.)
THIS M.F.A. IS FILED UNDER SECTION 38 OF KMC ACT
R/W ORDER 43 RULE 1 OF CPC, AGAINST THE JUDGMENT AND
ORDER DATED 06.04.2015 PASSED IN E.P.No.1/2013 ON THE
FILE OF THE III ADDITIONAL DISTRICT JUDGE AND ELECTION
TRIBUNAL AT BELAGAVI, DISMISSING THE APPEAL UNDER
SECTION 33 OF MUNCIPAL CORPORATION ACT 1976.
IN W.P.No.101369/2015:
BETWEEN :
SHRI BHAIRGOUDA,
S/O BALAGOUDA PATIL,
AGED ABOUT 32 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O PATIL GALLI, KANABARGI
BELAGAVI TALUK & DISTRICT. ...PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI RAVIRAJ C. PATIL, ADV.)
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AND :
1. DEPUTY COMMISSIONER, BELGAUM
COURT COMPOUND, BELGAUM.
2. ASSISTANT COMMISSIONER
BELGAUM, COURT COMPOUND
BELGAUM, BELGAUM DISTRICT.
3. TAHSILDAR BELGAUM
COURT COMPOUND, BELGAUM
BELGAUM DISTRICT.
4. SHRI SUDHIR
S/O NAGESH GADDE
AGE: MAJOR, OCC: AGRICULTURE
R/O KANABARGI
BELGAUM TALUK & DISTRICT
5. SHANKAR
S/O BASAVANT DESUR
AGE ABOUT 35 YEARS
OCC; AGRICULTURE
R/O KANBARGI, BELGAUM. ...RESPONDENTS
(BY SRI ANAND K NAVALAGIMATH, HCGP FOR R-1 TO R-3;
SRI SANGRAM S KULKARNI, ADV. FOR R-4;
SRI R.K.KULKARNI, ADV. FOR R-5.)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 29.01.2015 PASSED BY THE DEPUTY
COMMISSIONER BELGAUM IN R.B./SC/ST/AP-02/2014-15
MARKED AS ANNEXURE-G AND THEREBY QUASH THE ORDERS
DATED 27.02.2013 PASSED IN JAATI AADAY C.R.136/2012-13
BY THE TAHSILDAR, BELGAUM MARKED AS ANNEXURE-E AND
ORDER DATED 29.07.2013 PASSED BY THE ASSISTANT
COMMISSIONER, BELGAUM IN SC.ST.CR:8/2012 MARKED AS
ANNEXURE-F.
THESE APPEALS & PETITION HAVING BEEN RESERVED
FOR ORDERS ON 22.02.2018, COMING ON FOR
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PRONOUNCEMENT OF JUDGMENT/ORDER, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Since common questions are involved in these matters, the same are clubbed, heard together and disposed of by this common judgment.
2. The facts in brief are that Sri Bhairagouda Balgouda Patil (hereinafter referred as 'returned candidate'), obtained caste certificate from the Tahasildar to the effect that he belongs to Hindu "Ganiga" caste. Nomination paper was submitted by him to contest for the Councilor from Ward No.57 of the Belgaum City Corporation. One of the candidate Sri Shankar made a complaint against the returned candidate stating that the post was reserved for OBC-A category and the returned candidate was ineligible as he belongs to Hindu Lingavant Caste. The said objection was rejected by the Scrutiny Officer, directed the complainant to approach the appropriate authority. It -9- transpires that on 27.02.2013, the Tahasildar, Belgaum withdrew the caste certificate issued in favour of the returned candidate after holding an enquiry, following the procedure prescribed under law. However, the election was conducted for the office of Councilors of Ward No.57 of Belagum City Corporation on 07.02.2013. The returned candidate was declared to be elected from Ward No.57 of the Corporation City of Belgaum on 11.03.2013. Sri Sudhir Nagesh Gadde - one of the unsuccessful candidate in the election, filed the Election Petition No.3/2013. On the very same day, Election Petition No.1/2013 was filed by another unsuccessful candidate - Mr.Shankar. These two election petitions were clubbed together, heard and disposed of by the common order of the election Tribunal dated 06.04.2015, whereby Election Petition No.1/2013 was allowed and the election results declaring the returned candidate as the successful candidate in terms of the publication made in the
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official gazette of the State has been quashed. Election Petition No.3/2013 has been rejected as barred by limitation.
3. The candidate Sri.Sudhir Nagesh Gadde has filed M.F.A.No.101278/2015 against the order in E.P.No.3/2013, and M.F.A.No.101359/2015 insofar as not declaring him as the returned candidate in E.P.No.1/2013, whereas M.F.A.No.3750/2015 challenging the order in E.P.No.1/2013 and W.P.No.101369/2015 assailing the order of the Deputy Commissioner, Belgaum, are filed by the declared returned candidate Sri Bhairgouda Balagouda Patil.
4. Learned Senior Counsel Sri.Jayakumar S. Patil, representing Sri Raviraj C. Patil, learned counsel for the declared returned candidate submitted that Section 33 of the Karnataka Municipal Corporation Act ('KMC Act', for short) is in parametria with Section 81 of the Representation of People Act ('RP Act', for short).
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The Hon'ble Apex court in the case of JYOTI BASU AND OTHERS V/S. DEBI GHOSAL AND OTHERS, reported in (1982) 1 SCC 691, analyzing the provisions of Section 82 of the RP Act, enunciated the principles in as much as who may present an election petition. It is held that it may be any candidate at such election; it may be any elector of the constituency; it may be none else. Clause (a) of Section 82 provides that the petitioner shall join as respondents to the petitions. The returned candidates, if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates, if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Sub- section 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. It is submitted that the question whether the provisions of CPC can be invoked to permit the parties whose presence may be
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necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved has been considered by the Hon'ble Apex court in the said decision and held that the provisions of the Code cannot be so invoked. It is also observed that the Parliament has expressly provided an opportunity should be given to a person who is not a candidate to show cause against "as one guilty of a corrupt practice", thus, the respondent Nos.1 to 4, 11 and 12 arrayed as parties in the election petition namely, the Returning Officer, the Commissioner of State Election Commission, the Deputy Commissioner, the Tahasildar, the Commissioner of Corporation of the City of Belgaum, the Head Master - Sri Siddeshwara High School are not the parties to be joined as respondents to an election petition.
5. The Election Tribunal proceeded to decide the mater mainly on the documents issued by the
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Tahasildar - respondent No.4, the Head Master - respondent No.12 who were not examined by the petitioners before the Election Tribunal. No documents placed on record would be considered as a conclusive proof unless the author of the said document has been examined and an opportunity is provided to the opposite party to cross examine the said witnesses. No such opportunity was provided to the returned candidate to cross examine these persons. However, these documents are the basis for annulling the election results of the returning candidate.
6. Nextly, it was contended that the returned candidate belongs to 'LINGAVANTHA - GANIGA caste. In the school records, caste of the returned candidate was initially shown as LINGAVANTHA, GANIGA being a sub- caste in the LINGAVANTHA caste, the same was rectified in the school records. Considering these aspects, the Tahasildar had issued the caste certificate,
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the same cannot be withdrawn at the behest of the third party without following the due procedure prescribed under law.
7. It was contended that the Tribunal wrongly placed reliance on the Government order dated 27.01.2009 to arrive at a conclusion that Sub-caste of Lingavantha/Veerashaiva comes under the backward - 'B' class; The said Government order was not in existence during the relevant period. 'Ganiga' caste is not classified as backward class in the notification dated 13.01.1995. There was no pleading inasmuch as question of fraud alleged to have been played by the returned candidate. Written statement filed by the respondents was treated as evidence though authors of the said documents were not examined; Written statement is not a substitution for proof. No opportunity being provided to elicit from the witnesses, prejudiced the rights of the declared candidate. Thus, it was
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submitted that the entire approach of the Tribunal is wrong which resulted in miscarriage of justice. It was further submitted that the Election Petition No.3/2013 filed by Sri.Sudhir Nagesh Gadde being dismissed, he has no locus to challenge the said judgment as a respondent in E.P.No.1/2013.
8. As regards Writ Petition, it was submitted that notice was issued by the Tahasildar at 10.30 p.m., on 26.02.2013 fixing the date of hearing on 27.02.2013, caste certificate issued to the petitioner was withdrawn on 27.02.2013 providing no opportunity muchless reasonable opportunity to the returned candidate to substantiate his contentions. Against the said order of the Tahasildar, no appeal ought to have been filed by the returning candidate invoking the provisions of Section 4-B of the Scheduled Caste/Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.) Act, 1990 ('Act, 1990' for short) since
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the Tahasildar had issued the certificate in terms of the notification dated 13.01.1995. It was submitted that the provisions of the Act, 1990 are not applicable to challenge the Caste certificate issued in terms of the notification dated 13.01.1995. Hence, the order impugned is without jurisdiction liable to be quashed.
9. In support of his contentions, learned Senior Counsel placed reliance on the following Judgments:
1. "VASHIST NARAIN SHARMA V/S. DEV CHANDRA AND OTHERS" reported in AIR 1954 SC 513.
2. "PRAKASH KHANDRE V/S. Dr.VIJAYA KUMAR KHANDRE AND OTHERS" reported in AIR 2002 SC 2345.
3. "M.C.GANGEGOWDA V/S. K.B.GURUMALLAYYA AND OTHERS" reported in KAR.L.J 1990 VOL.I
382.
4. "K.S.MARIYAPPA V/S. K.T.SIDDALINGA SETTY"
reported in ILR 1989 KAR 425.
5. "JYOTI BASU AND OTHERS V/S. DEBI GHOSAL AND OTHERS" reported in (1982) 1 SCC 691.
6. "S.SHEKHAR V/S. COMMISSIONER AND RETURNING OFFICER, BANGALORE CITY
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CORPORATION, BANGALORE AND OTHERS" reported in 1999 (1) KAR L.J 98 (DB) .
7. "V.NAGARAJ V/S. THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY AND OTHERS"
reported in ILR 2009 KAR 3060.
8. "PRABHUSHANKAR.K.V. V/S. SELECTION COMMITTEE FOR MEDICAL COLLEGES AND OTHERS" reported in KAR.L.J. 1981 VOL.1 255.
10. Learned counsel Sri.D.Ravikumar Gokakakar, appearing for appellant in M.F.A.No.101278/2015 and M.F.A.No.101359/2015 submitted that the returned candidate though belongs to Hindu 'Lingavantha' caste, fabricated the school records in order to obtain the caste certificate as Hindu 'Ganiga' to get qualified as OBC 'A' candidate to contest for the elections of Belgaum City Corporation. In the objections filed by the returning candidate to the election petitions, no objections were raised regarding the respondents other than the contesting parties arrayed as parties in election petitions. It is for the first time in the appeal proceedings, this ground is raised.
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The issues were framed by the Tribunal based on the pleadings. No such issue regarding the non- maintainability of the election petition in as much as joining the respondents to petition was raised. Hence, the arguments of the learned Senior Counsel regarding the maintainability of the election petition for arraying the parties other than contesting candidates as respondents would vitiate the proceedings is wholly mis- conceived. Placing reliance on the judgment of the Hon'ble Apex Court in the case of B.S.Yeddiyurappa V/s. Mahalingappa (LAWS SC 2001 (10105)), it was submitted that those who are mentioned in Section 33 of the KMC Act must be made parties to an election petition and if they are not, the election petition requires to be dismissed. It does not however follow that if to an election petition, parties other than those who are necessary parties have been impleaded, the election petition is one that does not comply with the provisions of Section 33 and must be dismissed. Such a petition
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can be amended by striking out from the array of parties those additionally impleaded. Such being the position, no objection being raised before the Tribunal, returned candidate cannot take this ground of mis- joinder of parties to the proceedings vis-à-vis maintainability of the election petitions.
11. Section 101 to 104 of the Indian Evidence Act, 1872 was relied upon to contend that the burden cannot be shifted on the other candidate to prove that returning candidate belongs to 'Hindu - Ganiga' caste. The onus lies on the returning candidate to prove his case. He would have summoned the witnesses to rebut the documentary evidence placed on record. Exs.P11 to P24, the caste certificates of the family members of the declared candidate discloses that he belongs to 'Lingavanth' caste, which is not coming within the ambit of OBC-A category. Ex.P26 letter of the Headmaster, Exs.P27 to 30 letters of the Education Department,
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Government of Karnataka supports the stance of the unsuccessful candidates. Tahsildar conducted an enquiry pursuant to the complaint received that the returning candidate does not belong to OBC-A category. On enquiry it was found that the returning candidate belongs to 'Lingavanth' caste. It is manifest that in order to qualify himself for contesting the elections from OBC-A category, fraud and corrupt practice was played. On the order passed by the Tahsildar withdrawing the caste certificate, the same was challenged before the Asst. Commissioner, who in turn confirmed the same, against which writ petition was filed and the same came to be dismissed, further Writ Appeal was filed, which was also dismissed confirming the order of the learned Single Judge thus upholding the withdrawal of caste certificate of the petitioner. Subsequent to dismissal of Writ Appeal, returning candidate approached the Deputy Commissioner in Revision. Same being dismissed, writ petition is filed before this court. The
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petitioner having participated in the proceedings cannot challenge the jurisdiction of the Tahsildar in canceling the withdrawal, or the subsequent orders confirming the same. The focal point being whether the returning candidate belongs to 'Ganiga' caste or not has to be examined on the substantial material placed on record before the Election Tribunal as well as the Authorities concerned.
12. Section 37 of the KMC Act provides for the decision of the Court. It contemplates that at the conclusion of the trial of on election petition, the court shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returning candidates to be void; or (c) declaring the election of all or any of the returning candidates to be void and the petitioner or any other candidate to have been duly elected.
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13. Tribunal having held that the returning candidate has played fraud in contesting from Ward No.57 of Belgaum City Corporation reserved for OBC-A Category, annulled the declaration of the returning candidate as duly elected. However, rejected the prayer of the petitioner in the Election Petition No.1/2013, to declare the candidate who has secured majority votes next to the returning candidate as elected. The reasons assigned by the Tribunal at para 32 of the Judgment that if the winning candidate had revealed true facts to the Election Officers, then he would not have been eligible to contest the elections. In such a situation, it is beyond imagination as to who among the rest five candidates would the voters have elected and accordingly, ordered for conducting re-election which would jeoparadise the rights of the candidate who has secured second highest votes, holding a re-election would be a malady in addition to loss of revenue and
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public time which is ordinarily not preferable for the fraud committed by the returning candidate. Thus, it was submitted that the candidate Sri Sudhir Gadde having secured the second highest votes has to be declared as the elected candidate from Ward No.57 of Belgaum City Corporation.
14. Learned counsel Sri Sangram S. Kulkarni appearing for the candidate - Shankar Desur supporting the arguments of the learned counsel for Respondent No.3 contended that the school records disclose that the returning candidate belong to 'Lingavant' caste, if for any reason the caste recorded in any school records require to be altered, it has to be in accordance with law following due procedure prescribed. No school authority is competent to change the caste recorded in the school register. The manipulation made by the returning candidate by erasing, altering the caste as 'Ganiga' is apparent and thus the arguments advanced by the learned Senior
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counsel on behalf of the returning candidate are liable to be rejected, particularly when the statutory Authorities under Act, 1990 have arrived at a decision that the returned candidate belongs to 'Lingavat' and not 'Ganiga' to avail the benefit of the caste certificate as belonging to OBC-A category supported by public documents. Thus, the learned counsel seeks to dismiss the appeal as well as the writ petition filed by the returned candidate and to declare the candidate who has secured the second highest votes as the winning candidate. Learned counsel appearing for these respondents have placed reliance on the following Judgments:
1. "B.S.YEDDIYURAPPA V/S. MAHALINGAPPA"
REPORTED IN (LAWS SC 2001 (10105))
2. "KUMARI MADHURIPATIL V/S ADDL.
COMMISSIONER, TRIBAL DEVELOPMENT"
REPORTED IN AIR 1995 SC 94
3. "B.GEETHAMMA V/S. SMT GULSOM AND
OTHERS" REPORTED IN 2003 (4) KLJ 401.
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15. The points that arise for consideration are:
i) Whether the returning candidate Sri.Bhairgoud Balagouda Patil belongs to 'Ganiga' caste and is qualified to contest the elections from Ward No.57 of Belgaum City Corporation under OBC-A category ?
ii) Whether the Election Tribunal was justified in annulling the declaration of the returning candidate Sri.Bhairgoud Balagouda Patil as elected and directing re-election ?
iii) Whether withdrawal of caste certificate issued certifying that the returning candidate belongs to 'Ganiga' caste is in order?
iv) Whether the Appellate Authority as well as the Revisional Authority exercising the power under the Act, 1990 are justified in rejecting
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the appeal/Revision of the returning candidate ?
To answer these points it is beneficial to advert to the Judgments referred to by the learned counsel for the parties to collate the legal principles holding the field.
16. In VASHIST NARAIN SHARMA supra, the Hon'ble Apex court while considering the words "the result of the election has been materially affected", observed at para 9 as under:
"The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the
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returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion.
But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the
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necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100 (1) (c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the' Court to find in his favour on this point, the inevitable result would be that the Tribunal - would not interfere, in his favour and would allow the election to stand."
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17. In PRAKASH KHANDRE case supra, where election for the post of MLA was contested by five candidates for one seat, candidate who was disqualified to contest the election was elected. It was held that there being five candidates it could be impossible to predict or guess in whose favour the voters could have voted if they were aware that elected candidate was disqualified to contest the election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election while considering Sections 9A, 53, and allied provisions of the RP Act.
18. In M.C. GANGEGOWDA case supra, while considering the matter in the background of Section 19(1)(a) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, held that where there are more than two candidates in an election resulting in a multi-
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cornered contest and the returned candidate is found wanting in qualifications, the candidate securing next highest number of votes is not entitled to be seated and there will be merely a fresh election.
19. In K.S.MARIYAPPA case supra, it is held that the bald and general allegation cannot lead to an issue, not being plea of fraud or collusion. This judgment was rendered in the context of the suit filed for declaration for preliminary and final decree were nullity being tainted with fraud and collusion seeking partition, separate possession and mesne profits filed after 19 years from the date of preliminary decree and 17 years from date of final decree.
20. In JYOTI BASU supra, on which much emphasis was placed by the returned candidate, while considering the relevant provisions of the RP Act, the Hon'ble Apex Court held that only the 'candidates' expressly mentioned in Sections 82 and 86(4) RP Act,
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can be joined as respondents by the election petitioner and the non-candidates cannot be so joined, even though against them corruption charges made in the petition.
21. The Division Bench of this court in the Case of S.SHEKHAR supra, observed that while reading the Constitutional provisions nothing comes suggesting exclusion of the applicability of the principles of interpretation of the provisions of the RP Act to the provisions of KMC Act dealing with elections. Further, it is observed that the scope of application of procedural provisions of Code of Civil Procedure shall be made applicable in the trial and disposal of the election petitions. Section 36 of the KMC Act does not specifically made the provisions of the CPC applicable for presentation of the plaint in Civil Court or for institution of the suit as provided under Order 4 Rule 1 of CPC. The KMC Act provided a specific procedure for
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presentation of election petition. Therefore, by implication, applications of provisions of the CPC in that regard are excluded.
22. In the case of V.NAGARAJ supra, this court has held that non-complying with the office objections in the election petition within a stipulated time as required under Rule 9 of the Election Procedure Rules would not be held as the petition complete in all respects. In such circumstances, the petition ought to have been dismissed as per Section 86(1) of the RP Act.
23. In PRABHUSHANKAR.K.V supra, this Court observed that since among Lingayats there could be persons who belong to the Ganiga community, which is declared to be a backward community, if an applicant in addition to being a Lingayat was also a Ganiga, he is entitled to be considered for selection against one of the seats reserved for backward communities.
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24. The Hon'ble Apex Court in the case of B.S.Yeddiyurappa (supra) has held that those who are mentioned in Section 82 of RP Act must be made parties to an Election petition. If other than who are not necessary parties have been impleaded, the Election petition is one that does not comply with the provisions but if other parties are included it cannot be dismissed. Such a petition may be amended striking out from the array of parties those additionally impleaded.
25. In the light of these Judgments, the case on hand is carefully examined. Point Nos.(i) to (iii) are inter- connected and are discussed as hereunder:
As regards the arguments, no pleading inasmuch as fraud or forgery advanced by the learned Senior Counsel, it is apt to refer to the Election Petition No.1/2013 preferred by Mr.Shankar. In paragraph 3 of the petition, it is categorically pleaded that the original respondent No.3 Sri.Bhairgouda belongs to 'Hindu-
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Lingavant' caste which is not coming under CATEGORY-A. Hence, the selection of respondent No.3 is liable to be declared as null and void. This is nothing but fraud played by respondent No.3- Sri.Bhairgouda on the Constitution. The persons belonging to 'Hindu-
Lingavant' caste cannot contest election from ward No.57 as it was reserved for category-A caste persons.
Similarly in Election Petition No.3/2013, it is pleaded at paragraph 11, which reads thus:
"11. The election of the sixth respondent as councilor in the city corporation of city of Belgaum from ward No.57 is outcome of fraud and forgery, and a person who is supposed to stand to the trust reposed in him by the residents of the ward in Question is not in the sixt respondent. The sixth respondent was ineligible and incompetent to file nomination for the office of the councilor from ward No.57, within the meaning of Section 35(1)(a) of the KMC Act, 1976 and the Rules there under. The petitioner belonged to the reserved category and he secured the highest votes
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among the eligible candidates and hence the petitioner deserves to be declared as returned candidate."
Thus, as could be discerned from the aforesaid, a specific pleading was made by the petitioners in both the Election Petitions regarding the aspect of fraud/forgery/ manipulation played by the returned candidate. The Election Petition is required to contain concise statement of material facts, entire evidence in support of such material facts need not be set out in the pleading as contemplated in Section 33 (4)(a) of KMC Act. Hence, this ground raised by the learned Senior counsel has to be negated.
26. The arguments of the learned Senior counsel that no reliance can be placed on the written statement filed by respondents who are not examined may be true but independent of the same, if other material evidence is available in the nature of admission of pleadings and evidence of the returned candidate/credibility of public
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documents, banking upon the written statement of the other respondents would not lend any assistance. Returning candidate has to prove his eligibility to contest from OBC-A category.
27. The returning candidate in his cross examination has admitted that he had not produced any documents to show that he belongs to Ganiga caste. It is admitted that in Ex.P20, certificate issued by the Headmaster, Shri Siddeshwara High School, the caste of the returning candidate has been shown as Hindu-Lingavant, but, in the document issued to him, Hindu-Ganiga is shown, however, he fairly admits that the said document has not been placed before the court. Testimony of the said witness indicates that in the year 1997, the school head master exercising his powers has changed/corrected his caste as Hindu-Ganiga to which his father and uncle might have submitted an application but he does not know when the said
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application was submitted and which Headmaster has changed the caste. Thus, it is the admission of the returned candidate that in the school register, his caste was changed from 'Hindu-Lingavant' to 'Hindu-Ganiga' by the school Headmaster, may be at the request of his father or uncle. What is certain is, there is overwriting/corrections in the caste column of the register maintained by the school but the authenticity is not proved. It is categorically admitted that no document is placed on record by the returned candidate to show that he belongs to Ganiga caste. It is well settled law that any admission need not be proved. In the wake of the admission made by the returned candidate himself, as aforesaid, examination of other documents marked as exhibits corroborates the version of the petitioners in Election Petitions, would substantiate their stance inasmuch as manipulation of caste of the returned candidate in the school records. The act of the returning candidate changing the caste of
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'Hindu-Lingavant' to 'Hindu-Ganiga' not following the due procedure prescribed under law depicts the fraud played on the Constitution. The returned candidate asserts that he belongs to 'Hindu-Ganiga' caste, a Scheduled Caste coming under the OBC-A category to qualify for contesting the election in Ward No.57 of Belgaum City Corporation. Chapter 7 of Part-III of Indian Evidence Act, 1872, more particularly Section 101 to 104 contemplates that the burden of proof as to any particular fact lies on that person who shows the court to believe the existence of any fact. As elicited in the cross-examination of the returned candidate no material evidence is placed on record by the returning candidate to prove that he belongs to 'Hindu-Ganiga'. The onus was on the returning candidate to establish that the school records were corrected legally during 1997, not manipulated to contest for the election in the year 2013. The school certificates of siblings and the family members of returned candidate at Ex.P11 to P24
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shows the caste as Hindu - Lingavant as elicited in the cross-examination of the returning candidate. The attendant circumstances makes it manifestly clear that manipulation was made in the school register to obtain the caste certificate from the Tahsildar to the effect that returning candidate belongs to 'Hindu-Ganiga' caste. The onus lies on the returning candidate to prove that he belongs to 'Hindu-Ganiga' caste. There was no legal impediment for him to summon the respondents/any witnesses to rebut the allegations made by the petitioner if false and contrary to the facts. Except the ipse dixit statement of the returning candidate no other supporting evidence oral or documentary is available on record to substantiate his case.
28. Hence the arguments advanced by the learned Senior counsel on this point requires to be negated.
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29. The main ground of attack that the respondents other than the contesting parties arrayed as parties in election petition requires to be dismissed, also fails in view of the Judgment of the Hon'ble Apex Court in the case of B.S.Yeddiyurappa (supra). Had the returning candidate raised objections on this point, before the Tribunal, the petitioners had an opportunity to strike out the arrayed parties other than the contesting candidates. No objection being raised at the first instance, the same cannot be countenanced at the belated stage. On this ground, Election petition cannot be held to be invalid or not maintainable. The objection to maintainability has to be raised at the first available opportunity, not at the appellate stage.
30. The next ground urged by the learned Senior counsel that the Tribunal relying on the Govt. Order dated 27.1.2009 proceeded to decide the matter ignoring the subsequent amendments would lend no
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assistance for the reason that Lingayat/Veerashaiva/Ganiga was classified as Backward-III(B) as per the Govt. Order dated
27.01.2009, the same was modified by the Notification dated 28.2.2009 withdrawing the Govt. Order dated 27.01.2009 and restoring the position prior to the order dated 27.01.2009. However, in terms of the Notification dated 13.1.1995 issued by the Government of Karnataka 'Ganiga' caste falls under Sl.No.166-A of Category-'A'. Clause-iv(a) of Category-B contemplates Veerashaiva-Lingayat. Subclause (b) of Clause-iv deals with sub-castes of Lingayat whereby sub-caste 'Ganiga' is not figured. Reliance made on the Govt. Order dated 27.1.2009 would not validate the caste of the returning candidate as 'Hindu-Ganiga'. The primary dispute is whether the returning candidate comes under the caste 'Hindu-Ganiga' or not. The burden cast upon the returning candidate not being discharged, it can be inferred that returning candidate does not come under
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OBC-A category and was disqualified to contest the elections as OBC-A candidate.
31. It is not in dispute that the Election Petition No.3/2013 has been dismissed for want of deposit and on the ground of limitation which cannot be found fault with. However, Election Petition No.1/2013 has been allowed annulling the results published in the Karnataka Gazette on 11.4.2013 to Ward No.57 of Belgaum City Corporation held on 7.3.2013 declaring Sri.Bhairgoud Balagouda Patil as an elected candidate, directed to hold re-elections within a period of three months answering issue No.7 in affirmative viz., whether the petitioner proves that he is entitled to be declared as the returning candidate in the said election held on 7.3.2013 for Ward No.57 as prayed. In terms of Section 37 of KMC Act, the Tribunal is permitted to declare the petitioner or such other candidate who
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received the majority of the valid votes, as the case may be, to have been duly elected.
32. The KMC Act is a self contained code, indisputably, election has to be conducted in terms of the provisions of the said Act. Section 33 of the KMC Act provides for filing Election Petition. Section 37 deals with the decision of the court. Section 37 of the KMC Act is extracted hereunder for ready reference:
"37. Decision of the court.- (1) At the conclusion of the trail of an election petition, the court shall make an order,- (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. (2) If any person who has filed an election petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly
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elected and the court is of opinion,- (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate as the case may be, to have been duly elected. (3) If during the trail of an election petition it appears that there is an equality of votes between any candidates at the election and that the addition of a vote would entitle any of those candidates to be declared elected, then, the court shall decide between them by lot and proceed as if the one on whom the lot falls had received an additional vote."
In terms of this provision, obtaining majority of valid votes' by the candidate is sine-qua-non for the declaration of the petitioner or other candidate as duly elected. When the votes cast in favour of returned
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candidate whose election is held void on ground of disqualification cannot be treated as invalid must be held to be validly cast votes. If so, no other candidate gets the majority valid votes to declare such candidate as duly elected. There is no other option except to declare re-election. Hence, the arguments advanced by the learned counsel for the appellant in M.F.A.No.101359/2015 cannot be countenanced. This can be viewed in the light of the judgment of Hon'ble Apex Court in the case of PRAKASH KHANDRE, supra, there being five candidates it could be impossible to predict in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest the election. Short duration may not be a ground to deviate from the settled legal principles. No material irregularity or infirmity is found in the order of the Election Tribunal. Re-election shall be held in accordance with law.
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Point No.IV:
33. As regards the writ petition filed by the petitioner/returning candidate, the undisputed facts are that the Tahasildar issued caste certificate to the petitioner on 21.02.2013 on the application filed by the petitioner dated 20.02.2013 to the effect that he belongs to "Ganiga" caste, OBC-A Category. One Sri.Shankar - petitioner in E.P.No.1/2013 filed a complaint before the Tahasildar contending that Sri.Bhairgouda Balgouda Patil belongs to 'Hindu-Lingavantha' caste and not 'Ganiga' and accordingly, sought for withdrawal of the caste certificate. It is recorded that the returned candidate was heard on 26.02.2013, the Tahasildar passed order withdrawing caste certificate of the petitioner on 27.02.2013. Elections to Ward No.57 of Belgaum City Corporation was held on 09.03.2013. Sri.Bhairgouda Balgouda Patil was declared as elected by securing 1568 votes on 11.03.2013. The result of the
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election was published in the official gazette on 12.04.2013. Being aggrieved by the withdrawal of the caste certificate, an appeal was preferred by Sri.Bhairgouda Balgouda Patil before the Assistant Commissioner who dismissed the appeal. Aggrieved by the same, Writ Petition No.81520/2013 was preferred which came to be dismissed, directing the candidate to prefer Revision Petition. Writ Appeal No.199789/2014 was preferred by the candidate. The Division Bench confirmed the order of learned Single Judge, dismissing the writ appeal. Accordingly, the revision was preferred before the Deputy Commissioner, Belgaum challenging the order of the Assistant Commissioner dismissing the appeal. The Revisional Authority after hearing the parties, dismissed the revision petition. Hence, this writ petition by the returning candidate.
34. The main ground of challenge is that no opportunity much less sufficient opportunity was
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provided by the Tahasildar while withdrawing the caste certificate. Notice was issued at about 10.30 p.m., on 25.02.2013 at the instigation of the rival candidate Sri.Shankar, though no opportunity of hearing was provided, orders were passed on 27.02.2013 withdrawing the caste certificate. It is submitted that the provisions of the Act, 1990 is not applicable to the facts of the present case. On a wrong premise, the petitioner filed appeal before the Assistant Commissioner, challenging the order of the Tahasildar. The Assistant Commissioner/Deputy Commissioner had no jurisdiction to entertain and decide the appeal/revision. The order passed by the Assistant Commissioner rejecting the appeal/Deputy Commissioner dismissing the revision is without jurisdiction since the Tahasildar had issued the caste certificate in terms of the Government Notification dated 13.01.1995.
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35. It is the contention of the respondent Nos.4 and 5/unsuccessful candidates that sufficient opportunity was provided to the petitioner to putforth his explanation. It is after hearing the petitioner and holding an enquiry, the Tahasildar arrived at a decision, it was apparent that the petitioner had played fraud on the Constitution, in order to obtain caste certificate to qualify himself for the office of the Councilor from Ward No.57 of Belgaum City Corporation; the same was proved. Hence, the Tahasildar rightly proceeded to withdraw the caste certificate. On consideration of the material evidence and hearing both the parties, the Appellate Authority dismissed the appeal. The Writ Petition and the Writ Appeal being dismissed, the Deputy Commissioner appreciating the material on record, dismissed the Revision Petition filed by the petitioner, same do not call for any interference by this court. It was submitted that the petitioner knowing very well that he does not belong to 'Ganiga' caste - OBC A-
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Category, manipulated/fabricated the school register to qualify himself as a candidate from OBC-A Category. Learned counsel submitted that the Tahasildar ought to have followed the principles laid down by the Hon'ble Apex court in the case of Kumari Madhuripatil V/s Addl. Commissioner reported in AIR 1995 SC 94 while issuing the caste certificate. It is at the behest of the petitioner, sans following the required procedure, caste certificate was issued to the petitioner hurriedly. On the complaint made by Sri.Shankar, enquiry was held and it was noticed that the petitioner belongs to 'Hindu- Lingavantha' and not 'Ganiga' caste. As such, the same was withdrawn after holding an enquiry and hearing the petitioner, FIR was lodged by the Tahasildar and charge sheet was filed against the petitioner/returning candidate.
36. In the facts and circumstances of the case as narrated above, it is evident that the petitioner obtained
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caste certificate from the Tahasildar as he belongs to 'Ganiga' caste. On his failure to prove the same, holding an enquiry Tahasildar proceeded to withdraw the caste certificate. The same being dismissed by the Assistant Commissioner and Deputy Commissioner considering the factual matrix of the case, this Court do not find any valid ground to interfere with the same at this stage as the burden cast upon the petitioner to establish that he belongs to 'Ganiga' caste has not been discharged except making bald allegation against the Authorities that no sufficient opportunity was provided while withdrawing the caste certificate. The jurisdiction of the Assistant Commissioner in dismissing the appeal also cannot be faulted with, it is the petitioner who has approached the Appellate Authority invoking the power under Section 4B of the Act, 1990. The petitioner having acted, participated and suffered an order, now cannot turn back and argue that the proceedings of the Assistant Commissioner as well as the Deputy
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Commissioner are without jurisdiction. It is well settled legal principle that objection to jurisdiction has to be raised at the first available opportunity. In the present set of facts, the petitioner himself has elected to file an appeal before the Assistant Commissioner under Section 4B of the Act, 1990.
37. The qualification wrongly gained or obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics has to be discouraged. The certificate issued or scrutinized at the instance of the returning candidate taking a hasty decision without conducting proper enquiry as per Madhuri Patil, supra requires to be set- aside. It is, therefore, the Tahsildar knowing the mistake has withdrawn the caste certificate with utmost expedition and promptitude to mitigate
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further malady. The returning officer considering the election process having begun had no other option to proceed with the elections despite withdrawal of the caste certificate was brought to his notice, elections were conducted. Immediately election petitions were filed. All the Authorities have elaborately examined the claim of the petitioner and negated the same for want of substantial evidence. The act of the petitioner shows the fraud played on the Constitution. A person who is not qualified to file nomination to the office reserved for OBC-A Category, contesting the election on the pretext of a certificate obtained fraudulently is nothing but breach of trust reposed by the public. A person who is holding public office must be free from any flaw. If such public officer acts fraudulently and deliberately claims a false social status in order to usurp the power, snatching away the entitlement of a deserving candidate, defeating the purport of the reservation fixed, it is a serious misconduct, fraud of colossal proportion,
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would be in complete violation of the Constitution. An order passed by an authority in exercise of power vested with him acting in a reasonable manner cannot be interfered with. Hence, this Court do not find any valid ground to interfere with the order of the Authorities impugned herein.
Hence, the following:
ORDER Appeals as well as Writ Petition stands dismissed.
Impugned orders are confirmed.
The copy of this order shall be sent to the Deputy Commissioner, Belgaum forthwith.
The Competent Authority shall hold re-election to Ward No.57, Belgaum City Corporation in an expedite manner in accordance with law.
No costs.
(Sd/-) JUDGE ln.